Where a regulatory order refers to an invalid basis for jurisdiction

Where a public officer may make an order for several reasons, but fails to explicitly justify the order based a valid ground, he may lack jurisdiction, and the order may be invalid. This jurisdictional issue was recently illustrated where the Vancouver Police Department summarily dismissed a complaint against two police officers, but the Commissioner under the Police Act could order a further investigation, either within 30 days if in the public interest, or at any time based on new information. The Commissioner ordered an investigation after 30 days, based on the public interest provision (despite the time limit expiring). The Court of Appeal quashed the investigation order, as the order language referring to the public interest provision was determinative, even though reasons mentioned new evidence as well. The court found that it was not for the court to “infer from insufficient reasons that the Commissioner’s jurisdiction was exercised pursuant to another section of the statute” [43].

Vancouver (City) Police Department v. British Columbia (Police Complaint Commissioner), 2014 BCCA 181 (May 12, 2014)

Lisa Fong and Michael Ng